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Heartland wins. Or did they?

Fri, Apr 25th, 2003
Posted in Features

Deputy City Clerk Sheila Marzolf reads a resolution for a conditonal use permit for Heartland Energy & Recylcling LLC at Monday’s Preston City Council while members of the city council and interested citizens listen.

On Monday evening, the Preston Council Chamber was literally over flowing, with people sitting on the floor and many standing in the corridor straining to hear the proceedings of the Preston City Council. The council was meeting to decide whether to issue a conditional use permit (CUP) to Heartland Energy & Recycling LLC to build and operate a tire-derived fuel energy plant. Mayor Dave Pechulis established a three minute speaking limit for concerned citizens and warned that people needed to be civil to one another. After considerable discussion lasting over three hours, with many residents speaking out for and against the initiative, the council on a three (Jerry Scheevel, Mike Gartner, and Heath Mensink) to two (Mike McGarvey and David Pechulis) vote approved the Heartland CUP. But to the great surprise of everyone in the room, the mayor declared the resolution had failed. Pechulis cited the Preston ordinance, under Land Usage number 155.281 section (G) Discharge of Powers, part (2) , that "The concurring vote of four members of the City Council shall be necessary...to decide in favor of the applicant on any matter which is required to pass under this chapter..."While attorneys started leafing through the Zoning Ordinance, council members started firing questions at consulting attorney Mary Tietjen, of Minneapolis law firm Kennedy and Graven, who was advising the council throughout the meeting via speaker phone. Tietjen, unaware of the wording in the ordinance, was rendered speechless as city employees began faxing pages of the zoning ordinance to her. After several minutes of silence, Tietjen requested more time for research, saying that she would give an opinion on the matter the following day. She didn't think it would be necessary for the council to reconvene on this issue since the vote would not change. So, at the end of the night, the status of Heartland's CUP was in limbo once more.Petitions and LettersEarly on in the meeting, Kay Laging handed the mayor 29 petitions with 370 signatures from Preston citizens requesting that there be a special election allowing citizens to vote on this matter.Two letters from Peters and Peters, attorney for Southeastern Minnesotans for Environmental Protection (SEMEP) were read at the request of Council member Jerry Scheevel. The first letter requested that the city investigate whether Robert Maust made improper offers to any members of the Planning and Zoning Commission or to the City Council in connection with the permit process. Peters stated that he had received information from Steve Roessler suggesting that Maust may have made suggestions to Mayor Pechulis that a job at the plant would be available to him in the event the plant was built. A letter dated the following day withdrew the request for the investigation since Roessler was not a member of SEMEP. The letter states that 'members of SEMEP are concerned about retaliatory threats, their mission, and the reputation of members and elected officials'. Andy Brown, Heartland's attorney, said, "Maust never intended to improperly influence this body." Maust further said that he did not offer Mr. Pechulis a position at Heartland.60 day Extension RequestThese side issues were followed by Council member Mike McGarvey’s motion for a 60-day extension, seconded by Pechulis. McGarvey explained that the public hearing that was held months ago was not representative and that the notice did not properly mention an energy facility using tire derived fuel (TDF). But Attorney Tietjen explained that the notice need not give detailed information about the project. McGarvey said that had there been more specific notice, more than eleven people who were present at the public hearing would have showed up.Fred Nagle, Preston City Administrator, noted that people don't as a rule pay much attention to legal notices in the paper not withstanding the content. Cari Watson of Preston suggested that the notice was "overtly deceptive in a covert way". Attorney Andy Brown said that the minimum requirement for time, purpose, and place had been met.The motion for the 60-day extension failed on a three to two vote. The same voting split prevailed throughout the night with Scheevel, Gartner and Mensink voting in block, and Pechulis and McGarvey also voting together. Following the failure of the 60 day extension, Council member Jerry Scheevel moved that the resolution to adopt the CUP be adopted, Mensink seconded.Citizen StatementsInez Strahl of Preston asked the council 'please, do not approve the CUP'. Her reasoning included the following: questions about mercury emissions, concern about the combined emissions of Heartland and Pro-Corn, the experimental nature of the project, the economic well being of our community, and the close proximity, one mile, to the school, nursing home, and restaurant. Gary Hellickson, of rural Preston, spoke in favor of Heartland, stating that the development would bring more, rather than less, families to Preston and more needed students to our schools. As a member of the Fillmore Central School Board, Hellickson said he wants what is best for our kids. He sees industry such as Heartland as progress, which would bring more revenue to the city (approximately $70,000). Hellickson believes that the project “is a win-win. situation.”Dr. Eric Olson of Harmony, a PhD in Chemistry, spoke in response to Hellickson's remarks, saying “that he knew of at least twelve students that would be enrolled elsewhere if Heartland were up and running.” Olson questioned the accuracy of the environmental assessment worksheet (EAW) in its prediction of mercury emissions. He figures that mercury emissions would be above the Environmental Protection Agency (EPA) standard. Council member Mike Gartner, declared that we have to believe in the MPCA, as an authority on environmental information. “If we can’t believe in the MPCA, where do we go for expert advice?” Gartner asked.Attorney Andy Brown reiterated that this wasn't the time or place to get questions on air emissions. Brown said that the MPCA's findings on February 25, 2003, stated that there was no potential for environmental impact. He said that on May 13, 2003, the public can weigh in on issues pertaining to air emissions when the MPCA drafts an air permit. Steve Knoepke, a former council member, stated that the council's job 'was not to change rules and regulations, but to deny or not deny' based on the current ordinance. Gartner agreed that if 'Heartland conformed to everything there is no reason to interfere with the enterprise'. Jerome Deden from Eagle Bluff Environmental Learning introduced two letters from Lanesboro Area Chamber of Commerce and Late Bloomers of Lanesboro. Deden read the letter from the Chamber stating that the group is concerned that the 'economic survival of our community would be greatly compromised if, either through fact or innuendo, the general public became concerned about mercury or dioxin contamination of our soil, ground water, and regional fisheries'. They along with Late Bloomers requested that two conditions be added to the CUP. First, Heartland should work with the MN Department of Natural Resources to establish a baseline data for current air and water contaminates in the downwind area of the plant. Second, include in Heartland's air emissions permit a requirement to provide Preston monthly air emissions monitoring reports that include reports on HAPs, dioxins, furans, and mercury emissions.AmendmentsCouncil member Mike McGarvey made several amendments that would have added conditions to the Heartland CUP. Many of these were suggested by SEMEP in an April 9 letter to the Planning and Zoning Commission. Each amendment was made by McGarvey and seconded by Pechulis and each failed on a three to two voice vote. The amendments asked that Heartland have all permits in hand before construction started; that Heartland post a bond to cover demolition in the event of bankruptcy; that the energy plant limit fuel to TDF; that Heartland give the city monthly emission reports as detailed by Lanesboro Chamber of Commerce; that there be an employment agreement between Heartland and the city as to hiring Preston residents; that Heartland minimize sound production; and that Heartland work with Olmsted Medical Center to establish a health baseline from which to measure changes in residents’ health status over five years.At this point, Council member Jerry Scheevel, after holding up the resolution for nearly a half an hour, requested a vote on the original resolution. Again that vote was three for approval and two against, with the mayor announcing that the measure had failed.Legal OpinionOn Wednesday, consulting attorney Mary Tietjen gave her legal opinion as as to whether the super majority of four votes laid out in the ordinance applied in this situation.Tietjen cited a case decided by the Minnesota Court of Appeals that held that state law preempted the local ordinance .In conclusion, Tietjen wrote:1. State law preempts the ordinance’s 4/5 voting requirement, and the City may not impose such a requirement for the approval of a conditional use permit. Therefore, the motion to approve the CUP passed on April 21, 2003 with the 3-2 vote.2.The council did not adopt (and could not have adopted, unless a council member had changed his vote) a motion to deny Heartland’s application. Therefore, the application would be deemed approved pursuant to Minnesota Statutes, Section 15.99, even if the motion to approve the CUP required four votes to pass.While it appears that Heartland may eventually get their Conditional Use Permit, there remain several legal questions unanswered, leaving Heartlands request for a conditional use permit in limbo at the present time.

Karen Reisner can be contacted at news@fillmorecountyjournal.com

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